Section 1151 Claims
When something goes wrong and
the veteran suffers an injury or
death due to the negligence of
a federal employee, the veteran
or his/her spouse may pursue
claims under the
Many service members use industrial solvents in regular military tasks
Benzene Tetrachloroethylene
(PCE or PERC) Acetone Trichloroethylene (TCE) Xylenes
I forgot to tell the examiner some things, now what should I do?
Alabama
CASE PREVIEW
Justices to consider scope of “clear and unmistakable error” review of Veterans Affairs decisions.
Jim Strickland is a Vietnam era Army veteran and nationally recognized expert on VA disability benefits.
Jim writes extensively about VA and Social Security disability benefits.
Jim's Mailbag is a regular column featured at Stateside Legal where veterans, servicemembers, and family members can ask Jim their questions about VA and Social Security disability benefits.
Angina?
Question:
Is angina secondary to ischemic heart disease due to herbicide exposure?
Jim's Reply:
No. Angina is not a rated disease or condition. Angina is an occasional symptom associated with ischemic heart disease, a rated condition.
More about ratings of heart disease is here https://www.benefits.va.gov/WARMS/docs/regs/38cfr/bookc/part4/s4_104.doc
How To Increase An Existing VA Disability Rating %
Survivors Pension
Question:
My husband passef away in Oct. of 2021 snd i have applied for survivors pension. The VA replied that they denied my claim because my husband did not have wartime service. He served in Air Force from Jan. 20, 1960 through Jan.17,1964. Please give me info on this as i believe from all i have read, including statements from VA, that he was in the time frame and qualifications for me to receive benefits as a qualifying Vietnam Vets widow.
Jim's Reply:
Eligibility for survivors pension is authorized for 02/28/1961 to 05/07/1975 for Veterans who served in the Republic of Vietnam during that period; otherwise 08/05/1964 to 05/07/1975.
If your husband served until 01/17/1964 and he didn't serve in the Republic of Vietnam during that time, you aren't eligible for survivors pension. You claim that you are a "Vietnam Vets widow" and for that to be true, he'd have had to have service in the country of Vietnam during the times noted. If he didn't serve in country, you may claim to be the widow of a Vietnam era veteran rather than a Vietnam vet.
If you're sure he served in country, you should formally appeal the denial. Good luck.
More information is here.
Citation Nr: 1821530 DOCKET NO. 14-24 246
38 U.S.C. § 1151 is VA's medical malpractice statute, which compensates claimants who suffer "qualifying additional disability"
as a result of surgical, or other medical, treatment administered by VA. Such benefits are to be awarded in the same manner
as if the "additional disability ... were service-connected." See 38 U.S.C. § 1151(a); see also Roberson v. Shinseki, 607 F.3d 809,
813 (Fed. Cir. 2010). The current provisions of 38 U.S.C. § 1151 make clear that compensation may only be awarded for a
"qualifying additional disability" that was proximately caused by carelessness, negligence, lack of proper skill, error in judgment,
or similar instance of fault on the part of VA in furnishing treatment, or by an event not reasonably foreseeable.
Lymphedema
Question:
Is lymphedema a disability?
Jim's Reply:
Lymphedema is more of a symptom of a disease process going on in your body than it is a disease or condition unto itself. In other words, lymphedema may be secondary to another rated condition like cancer. You can file for it as a rated condition but without knowing more about the cause of the lymphedema I can't advise you about how successful the claim may be. Good luck.
So you want to increase your ratings
Let's have a look at your rating for service connected diabetes...you think it's too low and you believe an increase is justified. That's often the case as diabetes doesn't generally improve over time, it gets harder to deal with.
This will be true of almost any rated disease or injury. As we age nothing seems to improve!
Your first step will be to access the rating schedule https://www.benefits.va.gov/WARMS/bookc.asp#n and find the section that applies to your research goal. In this case you'll look at 4.119 - Schedule of Ratings - The Endocrine System 7913 - Diabetes mellitus.
You're currently rated at 20% but a couple of months ago your doctor advised you that you must begin insulin injections as your oral hypoglycemic agent isn't doing the trick any longer. You believe that you should be rated at 40%.
According to what we see in The Schedule, you're correct and you should be rated at 40%.
Now you need to file a claim seeking the increase and offering the reasoning behind your request...that you're taking insulin now.
You'll want to provide evidence of that particularly if you're being treated outside the VA health system. It's up to you to provide evidence of your claim...never depend on VA to fetch it for you.
This simple process applies to any rated condition, not only diabetes. If you'll match your symptoms and evidence to what is required in The Schedule, you've improved your chances of getting that increase.
Eras?
Question:
Why is there no "era" differentiation for support personnel for WWI, WWII, Korea, Desert Storm, Iraqi Freedom? As a matter if fact, if you joined the service the day before the end of WWII and never stepped foot in theater you were still awarded the WWII Victory Medal. The "era" label is an insult to all the support personnel during the Vietnam conflict.
Jim's Reply:
I'm not at all sure why you're angry? An insult? Seriously? This is what you choose to get upset about? I take it that you're Vietnam era and you didn't get the Vietnam Service Medal and you're all hurt about that?
The term 'era' is used throughout many references to historic events. VA defines eras like the Mexican Border period (May 9, 1916, to April 5, 1917), World War I (April 6, 1917, to November 11, 1918), World War II (December 7, 1941, to December 31, 1946) and so on. Each of those eras is entitled to different benefits and such so there is plenty of differentiation.
Human history is generally divided into eras such as Prehistory, Classical, Middle Ages, Early Modern, and Modern. Humans like to categorize things so our brain better grasps the concepts we're presented. Periods of history are put into boxes where similarities exist. The fact that you're upset about that to a point that you are compelled to write to me is...interesting.
For what it's worth, I'm Vietnam era...one of the 'support personnel' you refer to. Although I served most of my tour in Germany as a hospital medic, I cared for Vietnam combat troops so in a roundabout way I was part of your support personnel. I'm proud of my service and I'm proud that I was able to make some small contribution to help my comrades through difficult times. I did my job well and I'm happy I was able to serve my country during the Vietnam war era.
'A soldier will fight long and hard for a bit of colored ribbon' - Napoleon Bonaparte. I get so much mail about the VSM I fear it proves him right. You're another in a long line of veterans who wonder why they didn't get their 'bit of colored ribbon'.
The WWII Victory medal was awarded for military service, much like the National Defense Medal or a Good Conduct Ribbon. It didn't note any particular region of service (Pacific, European Theatre. etc.) and was criticized for both the timing of the award and the fact that almost everyone got one, even student cadets who never served.
If you're really all that concerned, your Congressional representatives are waiting to hear from you. That's where change of government definitions begins. Good luck.
Citation Nr: 21051744 DOCKET NO. 12-23 618
Increased Ratings VA's schedular percentage ratings are based on the average impairment of earning capacity as a result
of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.
A Veterans Affairs (VA) disability compensation rating reflects the rated condition in the approximate moment in time when the rating decision was made. Ratings in 10% increments reflect the severity of a disabling condition on an increasing scale from 0% to 100%.
There are ratings above and beyond the standard 100% rating and those are reserved for the most acutely injured or ill veterans.
It's accepted that over time a given disabling condition may become worse or more disabling and an upward adjustment to the rating should be considered.
There are a few common sense steps to performing what is essentially a new claim application for a benefit...this one being for an increase.
To be sure you're eligible and can prove your claim, have a look at The Schedule For Rating Disabilities
The Schedule is your guide to what you may be eligible for. You may learn that your current rating is already at the maximum or that your current rating is seriously deficient. You have to research it to know.
Gather your evidence and records to support the increase. If there are civilian medical records, you have to gather those for yourself. Do not rely on VA to obtain your civilian records.
It's time to file the claim.
Be as precise as you can to describe just what it is that you want. Provide supporting evidence. I think that it's a good idea to go ahead and have an IMO done .
File your Intent To File A Claim form and have an IMO done to provide when you finally get around to filing the claim for an increase. If you take the time to do a thorough job of crossing t's and dotting i's after you've filed your Intent to File form, an increase is a pretty sure thing.
You have to go in with all the evidence you need though...do not depend on VA to help! If you're sure, go for it. If you aren't sure, you have some more work to do.
Nexus?
Question:
I am filing for Sleep Apnea secondary to Hypothyroidism for which I am approved. My ENT wrote a nexus letter, but it was not good enough. It seems they want more details on how he got to the nexus. Do you know of any references I can use to justify the connection? Thanks.
Jim's Reply:
Whenever a provider writes a nexus letter to help us establish service connection and an appropriate rating that person must provide a rationale for their opinion that is based in current science. If your doctor says that your OSA is more likely than not secondary to your hypothyroidism, the doctor must then state how and why he or she arrived at that conclusion. It isn't your task to sort out the science and that you're trying to isn't a great sign.
I can think of a couple of options that may help. First, go to the Board of Veterans Appeals site and use their search engine to learn how cases similar to yours have done in an appeal. Enter your key words and choose 1 or 2 years to search and read some cases. You'll learn a lot about how VA views cases similar to your own.
The other option...and the one most likely to prevail...is to retain a disability medicine professional to provide the nexus you need to prevail. You can learn more about the Independent Medical Opinion (IMO) here.
Good luck!
Space A?
Question:
I am rated as a 100% permanent and total disabled veteran. My base rating is 80%, but am rated as TDIU, so I have a total of 100% rating. Do I qualify for Space A flights?
Jim's Reply:
Yes, you are a 100% permanently and totally disabled veteran. That there is a TDIU rating in there doesn't make any difference, you are Category VI
On a personal note, I've never known anyone who was successful in getting a free flight anywhere. The real issue comes into play when you're trying to return from wherever you found a flight to.
I'm also eligible and looked at it a few years back and schedules were too dicey for me. Good luck!
Discharge Upgrade?
Question:
If an Airman failed tech school and received an uncharacterized discharge because they separated under 180 days, can they apply to have the discharge upgraded to an honorable one and if so how can one go about doing it?
Jim's Reply:
You'll need to get in touch with these folks The Veterans Consortium. If you'll go ahead and click that link you'll find all the intel you'll need to get in touch with them. Their experts will evaluate what you've got and help you as you go along. Good luck!
PART I—GENERAL PROVISIONS
PART II—GENERAL BENEFITS
PART III—READJUSTMENT AND RELATED BENEFITS
VETERANS AFFAIRS
Military Health
Did you see combat, enemy fire,
or casualties? Were you or a buddy wounded, injured or hospitalized?
Do you have a claim pending for illness or injury related to your military service?
Do you have a service-connected condition?
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Let's Talk About The Benefits You Earned via Your
Honorable Service To Our Country
38 CFR Book C, Schedule for Rating Disabilities tells you the standards you must meet to be awarded a % rating for
a given condition. Below we've selected
a few of the most frequently
needed sections of The Schedule
VA DISABILITY COMPENSATION
A veteran is entitled to disability compensation if he or she were
(1) discharged or released from the military under conditions other than dishonorable,
(2) their disease or injury was incurred or aggravated in the line of duty, and
(3) the disease or injury was not the result of the their own willful misconduct
or abuse of drugs.
Veterans Benefits Administration Reports
Detailed Claims Data Status Reports
Reports contain data covering claims inventory, claims backlog, claims accuracy, and Fully Developed Claims.
The reports of American decline
are greatly exaggerated
America is wealthy, influential, powerful,
and increasingly equal.
Don't let anyone tell you otherwise.
Budget Projects Employment Growth
at VA, Agriculture, Other Agencies
Some 29,000 of those
positions would be at the VA
What You'll Find Here
Up-To-Date News About Your Benefits, Headlines Important To You, How-To Articles & Links to Pros Who Can Help.
Entitlement to service connection
for bilateral foot disability claimed
as secondary to
carbon tetrachloride exposure.
What You Won't Find Here
User Fees, Hidden Fees, Rumors,
Requests For Donations, Mailing Lists
or Registration Requirements.
Disability benefits can enhance your independence and help you care for your family
Veterans’ Benefits Rating and Rates Disability Compensation
Veterans who have disabilities, medical conditions or injuries incurred or aggravated during active military service —
no matter when or where they served — may be eligible to receive tax-free monthly benefits.
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Right. Now.
Are You Having A Claims Crisis?
Delays? Misinformation?
Call
855 - 948 - 2311
Or Email
<Denis.McDonough@va.gov>
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Be sure to include your DOB, your last 4, contact info... a couple of numbers, your preferred email and such. Describe the problem as briefly as you can.